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A Bad "DIEHL" For Untimely IRE's

Cynthia Baker

Source: Diehl v. WCAB (IA Construction and Liberty Mutual Insurance), ___ A.2d. ___ (Pa. Cmwlth. 2007)

Analysis

In an unexpected and controversial decision, the Commonwealth Court has held that the filing of a Modification Petition, based upon evidence of an impairment rating of less than fifty percent is not the “traditional administrative process” contemplated by the Supreme Court in Gardner for modifying a claimant’s benefits based upon an untimely IRE. Instead, the Commonwealth Court held that an employer seeking to modify benefits to partial disability status must prove work availability either through a Labor Market Survey or through traditional job development as set forth by the Supreme Court in Kachinski.

What it Means For You

Although an appeal is anticipated, employers are no longer able to modify a claimant’s benefits to partial disability status per the IRE procedure if the IRE resulting in an impairment rating of less than fifty percent was untimely. Therefore, it is imperative that all files be diaried to ensure a timely request for an IRE, which should take place within the sixty (60) days after the claimant’s receipt of 104 weeks of temporary total disability benefits. Contact a C&W workers’ compensation attorney to discuss the impact of the Diehl decision on your case.

About C&W

Cipriani & Werner is a professional corporation providing civil litigation and workman's compensation legal services to clients throughout Pennsylvania and New Jersey. If you have questions, feel free to contact Cynthia Baker at (412) 563-2500.

You can also read more about the article's related practice groups:
Workers' Compensation